October 13, 2000

DAR OPINION NO. 27-00

Col. Santiago N. Robles (Ret.)

Blk. 68, Lot 41, Upper Bicutan

Municipality of Taguig 1633

Metro Manila

Dear Col. Robles:

This has reference to your request for interpretation of Section 38 of R.A. No. 3844 on the reckoning date of the 3-year prescription period. Section 38 of said law provides:

"Section 38.   Statute of Limitations. — An action to enforce any cause of action under this Code shall be barred if not commenced within three (3) years after such cause of action accrued."

You state that a tenant mortgaged the land he is tilling. Thus, you posed this question:

When does the 3 year period begin for purposes of prescription, is it from the date the tenant executed the mortgage contract with a third-party or from the date of the discovery by the landlord that his tenant has entered into such contract?

We believe, for purposes of prescription, that the three (3) year period starts running from the time of discovery by the landowner of the mortgage contract entered into by the tenant. This is so since the contract appears not to be authorized by the landowner.

Moreover, it was held that the running of the 3-year prescriptive period was stopped by the filing of letter-complaint with DAR. The law does not specifically require a judicial action, hence, it can be an administrative action. Ubi lex non distinguit nec nos distinguere debentos (Where the law does not distinguish, we should not distinguish) — Dolorfino vs. Court of Appeals, 191 SCRA 880, 03 December 1990.

Finally, it must be stressed that one of the essential requisites of a contract of mortgage is that the mortgagor should be the absolute owner of the thing mortgaged. Here, the tenant is, apparently not the owner nor does it appear that he was duly authorized by the landowner to mortgage the land in issue.

We hope to have clarified the matter with you.

Very truly yours,

(SGD.) FEDERICO A. POBLETE

Undersecretary for Legal Affairs, and Policy and Planning